The Queen v Yatno
[2018] NTSC 53
•2 August 2018
CITATION:The Queen v Yatno & Anor [2018] NTSC 53
PARTIES:THE QUEEN
v
YATNO, Abdul Khamid B
and
AMINUDIN
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21814025 & 21814023
DELIVERED: 2 August 2018
HEARING DATES: 23, 24 & 26 July 2018
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL LAW – Evidence – whether presumption in s 146 Evidence (National Uniform Legislation) Act (NT) applies to vessel monitoring system (VMS) data – whether information was insufficient regarding VMS data such that presumption does not apply – presumption directed towards evidence produced by device or process and not content or accuracy of data – evidence given from another witness clarifying VMS process – s 146 presumption includes complex devices and processes – reasonably open on all evidence to find VMS data was produced by a device or process.
CRIMINAL LAW – Evidence – whether further evidence raised doubt regarding operation of presumption – further evidence given of VMS data inconsistent with original evidence – doubt raised such that presumption displaced – Evidence (National Uniform Legislation) Act (NT), s 146(2).
CRIMINAL LAW – Evidence – whether use of further evidence should be limited to voir dire purposes only and not admitted as admission – further evidence given by manager in company employing accused may show fishing boat was within AFZ – evidence not admission as not made by a person who is a party to a proceeding and the circumstances the evidence was created in not sufficiently reliable – use of evidence limited as described – Evidence (National Uniform Legislation) Act (NT), s 136.
CRIMINAL LAW – Evidence – whether exercise books found on-board fishing boat admissible – argued no proof of authorship of entries, that books originated on fishing boat in question, or that entries related to the subject journey – argued Fisheries Officer who produced books and gave evidence made assumptions that entries represented dates – Officer was ad hoc expert on how Indonesian fishers operate due to experience and could give the evidence he did – sufficient provenance established to make exercise books relevant and admissible – Evidence (National Uniform Legislation) Act (NT), s 79.
CRIMINAL LAW – Evidence – whether s 166(2) Fisheries Management Act 1991 (Cth) Certificates admissible – basis of objection unclear – no suggestion Officer who made Certificate not authorised or did not have appropriate delegation – Certificates admissible – Fisheries Management Act 1991 (Cth), s 166(8).
Evidence (National Uniform Legislation) Act (NT) ss 79, 146, 146(2)
Fisheries Management Act 1991 (Cth) ss 100(2), 101(2), 166(1), 166(2), 166(7), 166(8)
Aregar v Cox [2018] NTCA 3; Ministry of Agriculture and Fisheries v Thomas [1994] DCR 486; Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; Norvill v Stokes [2006] NSWLEC 622; Penrose v Nominal Defendant & Anor [2009] NSWSC 1187; United States of America v Brooks, 715F 3d 1069 (8th Circ, 2013); Wilgosh v Good Spirit Acres Ltd [2007] SKCA 43; Zappia v Web [1974] WAR 15 referred to.
REPRESENTATION:
Counsel:
Crown:B McMillan
Defendants:L Nguyen, M Thomas
Solicitors:
Crown:Office of the Director of Public Prosecutions (Cth)
Judgment category classification: B
Judgment ID Number: BLO 1804
Number of pages: 20
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Yatno & Anor [2018] NTSC 53
No. 21814025 & 21814023
BETWEEN:
THE QUEEN
Crown
AND:
ABDUL KHAMID B. YATNO
First Defendant
AMINUDIN
Second Defendant
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 2 August 2018)
Reasons for pre-trial advance rulings
Background
The accused are to stand trial on charges against the Fisheries Management Act 1991 (Cth). Count 1 charges that between 1January 2018 and 16 February 2018, within the Australian Fishing Zone (AFZ) Abdul Khamid B Yatno, had in his possession or charge a foreign boat, the Perintis Jaya 19, equipped for fishing, contrary to s 101(2) of the Fisheries Management Act. Count 2 charges that between the same dates he used the same foreign vessel for commercial fishing within the AFZ contrary to s 100(2) of the Fisheries Management Act. Aminudin is charged separately that between the same dates within the AFZ he used the same foreign boat for commercial fishing, contrary to s 100(2) of the Fisheries Management Act.
The form of the current indictment expands the scope of the original indictment which was limited to alleged illegal fishing on 16 February 2018, the date of the apprehension of the Perintis Jaya 19. The expanded dates put any alleged incursion into the AFZ between those dates into issue. The Crown produced and served a significant amount of further evidentiary material following the filing of the current indictment. A voir dire was conducted on a number of issues arising from that material. These are reasons for rulings made at the conclusion of the voir dire and a ruling on one matter which remained outstanding after the voir dire hearing.
The operation of the presumption under s 146(2) of the Evidence (National Uniform Legislation) Act (NT) with respect to the evidence of the vessel monitoring system (VMS) data produced by Mr Muhammad
Ikhsan
The Crown tendered a statutory declaration sworn on 1 June 2018 by Mr Muhammad Ikhsan which sets out the steps taken by him at the request of the Australian Fisheries Management Authority (AFMA) to retrieve VMS information on the Perintis Jaya 19 from 1 January 2018 to 24 February 2018. Mr Ikhsan is the head of Operation Strategy Directorate-General Marine and Fisheries Surveillance within the Indonesian Ministry of Marine Affairs and Fisheries (MMAF). As part of his employment, Mr Ikhsan has access to the MMAF VMS system. He accessed the information requested and forwarded it to AFMA. Annexed to his affidavit are tables including dates and what appear to be coordinates arranged in columns next to entries appearing in the first column stating “Perintis Jaya 19”. On its face, the data appears to relate to the GPS positions of the Perintis Jaya 19.
With other evidence the Crown anticipates will prove the position of the AFZ, the Crown would use the data annexed to Mr Ikhsan’s statutory declaration to attempt to prove the position of the Perintis Jaya 19, and that it was inside the AFZ numerous times during the relevant period.
On behalf of the accused, objection was taken to the Crown’s reliance on the presumption established by s 146 of the Evidence (National Uniform Legislation) Act (“UEA”) which deals with evidence produced by processes, machines and devices. The objection was dealt with in two stages. The first was in the nature of a threshold issue, namely whether s 146 could properly apply to the VMS data provided by Mr Ikhsan. The second was that if s 146 potentially applied, a ruling was to be sought based on evidence the defence anticipated would be adduced later in the voir dire which, it was argued, would raise a doubt about the presumption in the terms contemplated by s 146(2).
Section 146 of the UEA provides:
(1)This section applies to a document or thing:
(a)that is produced wholly or partly by a device or process; and
(b)that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2)If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Section 146 creates a rebuttable presumption. The example given in the text of the UEA of a photocopier indicates that it would not, for instance, be necessary to call evidence to prove that a photocopier normally produced complete copies of documents and that it was working properly when it was used to photocopy the relevant document.
Counsel for the accused put forward the following reasons as to why the presumption should not apply. There was insufficient material to show the source of the VMS data. It was not known whether the data was from a GPS device or satellites or both. Further, it was not apparent whether the source of the VMS data was drawn from a device located on the Perintis Jaya 19, and if so, whether the device was properly installed, cabled and operating. The evidence did not show whether one or multiple systems were used, such as GPS in combination with satellite systems or other signal systems. Neither was there evidence about the level and nature of human- or machine-generated inputs required to generate the data. Nor, it was submitted, could the Court be satisfied as to the reliability and accuracy of the original source. It may be noticed it has been observed s 146 is directed to evidence produced by the application of a mechanical or technological device or process, not to the content of the material. The section is not directed to the underlying accuracy.[1] Although of relevance, accuracy of the data is not the critical feature, but obviously may be relevant for other associated reasons. Further issues of reliability and accuracy were raised about the transmission of any data to the MMAF and as to the MMAF system, including how it generates pre-existing maritime boundaries, how boundaries are measured, calculated and stored, and whether the data could have been generated by other boats producing signals rather than the identified signals being generated by the Perinits Jaya 19.
Had the evidence about the “device or process” come solely from Mr Ikhsan’s statutory declaration and annexures, there would have been significant force in the argument that the presumption could not operate with respect to the VMS data.
It is the case that Mr Ikhsan’s statutory declaration says nothing of the VMS system or how the data is produced. However, Mr John Michael Davis, the Senior Manager Compliance Operations for AFMA, provided a statement sworn on 20 July 2018 setting out a general description of satellite-based VMS data, including a description and diagram of the flow of information from a Global Positioning Satellite to a boat, to a communication satellite, to a land earth station and on to the Fisheries Management Agency. His statement principally addressed the AFMA system, however additionally he said satellite-based VMS is currently in common use worldwide and is used by industry and governments alike to remotely monitor different types of vessels, including fishing vessels for compliance reasons. He states the system has been used by AFMA since the 1990s to monitor vessels in the AFZ and that VMS delivers real-time vessel information via International Maritime Satellite (INMARSAT) communications for monitoring purposes. In his oral evidence, Mr Davis told the Court that Indonesia also uses INMARSAT. He stated each VMS unit is configured to routinely produce reports on a vessel’s position including location, course and speed. Once the position is reported at AFMA, the data is automatically displayed as plots on marine charts for further geospatial analysis.
Mr Davis went on to explain that a vessel operator in Australia is required to install a government-approved VMS on their vessel in accordance with approved standards to ensure reliability and accuracy, and to make them “tamper proof”. VMS units are usually sealed in a “black box” configuration on the vessel which has an internal GPS and various other instruments such as timers. The data in the case of AFMA is sent from an on-board VMS via INMARSAT to a land earth station, then on to the recipient via hard cable or encrypted internet. The generation of VMS position reporting is fully automated without human intervention. The accuracy of the system is equivalent to the accuracy of the GPS system.
Mr Davis acknowledged his description of the VMS was essentially based on the Australian operation of the system. The Australian system requires government manufacturing and installation standards. When asked about VMS systems operating in other countries including Indonesia, and whether that was a subject outside of his field of involvement, he said he was aware of how other VMS systems work because they utilise the same basic mechanics, for example, the Indonesian VMS system also uses INMARSAT. He agreed he did not know the precise detail of how the Indonesian system operates. He had been a consultant in his field and had installed the systems and units in a number of countries, including a number of Pacific Island countries.
Notwithstanding the evidence of Mr Davis, counsel for the accused argued the presumption should not in any event apply to VMS data, given the complex nature of the system. She argued the example given of the photocopying machine near the text of s 146 illustrated the type of device that would attract the operation of the presumption. Counsel also pointed out the VMS system is not a device commonly used by ordinary people, but rather, VMS systems are satellite-based and, unlike the use of GPS, VMS is not so well-known that it could be presumed to be accurate. It was said VMS was anything but straightforward, and required a combination of several systems that needed to work in tandem.
Attention was drawn to the New Zealand case of Ministry of Agriculture and Fisheries v Wallace[2] dealing with the question of whether GPS was a notorious scientific instrument such that its accuracy could be accepted. Previously in Ministry of Agriculture and Fisheries v Thomas[3] the same Court had held that it was not a notorious scientific instrument. Counsel pointed out that in Ministry of Agriculture and Fisheries v Wallace, evidence was given by an expert on the GPS system as to its capabilities, the method by which a position was determined, the source and extent of any errors, the reliability of receivers and the capability of the receivers used by a fisheries officer. While examining Ministry of Agriculture and Fisheries v Thomas, the Court in Wallace referred to the reliance in Thomas on the Australian case of Zappia v Web[4] where Jackson CJ said:
It is well-established that the Courts will take judicial notice of the use, nature, and purpose of many mechanical or scientific instruments in common use, such as watches, thermometers, barometers, speedometers and the like. These instruments are of a class which by the general experience are known to be trustworthy, even if not infallible, so that there is a presumption of fact, in the absence of evidence to the contrary, that readings taken from such instruments are correct, and hence it is not necessary to show that at the relevant time the instrument has been tested and found to be working correctly. But the acceptance of a particular instrument without proof of its function, operation, and accuracy depends upon the extent to which it is commonly used within the community, so that a mechanical or scientific device recently invented will usually require expert evidence to establish what it can measure or accomplish and whether it can be relied on. Later, as the device and its use becomes known, a stage may be reached where the Courts will be sufficiently familiar with it, not to require proof of what it is and what it does, but may still require evidence of its accuracy at the relevant time.
When referring to the status of GPS since the decision of Thomas, Rushton J said:[5]
The situation has now changed markedly with the passage of time and the ready acceptance of new and more accurate navigational systems and the competitive pricing of those systems. I am satisfied from the evidence I have heard which is unchallenged the GPS is now widely used in the community. … [T]he situation has been reached where, with the extent of the use of this method of navigation, the device qualifies as a notorious scientific instrument for navigational purposes. It therefore follows that, the stage having been reached where the community (and it follows: the Courts) are sufficiently familiar with the Global Positioning System (GPS) that proof of what it is and what it does will no longer be required although evidence of its accuracy at the relevant time may still be required.
Ms Nguyen, counsel for the accused, submitted that the VMS was not in the same category as a GPS or other notorious scientific devices. Effectively the stage had not yet been reached where VMS should be regarded as accepted.
Attention was also drawn to Norvill v Stokes.[6] In terms of the application of s 146, Jagot J found that it was reasonably open on the evidence to find that a GPS device is a device that, if properly used, ordinarily produces an outcome, being a coordinate expressed in a particular manner, identifying the location of the device. Evidence was also accepted about the margin of error. The evidence about the margin of error was not however based on the personal knowledge of the witness who gave the evidence, and it was held in those circumstances, s 146 would not enable the Court to presume that a GPS device will identify its location with any particular level of accuracy. It was accepted the margin of error could have been outside of the range identified by the witness in question in Norvill v Stokes.
Relying on the approaches taken previously, it was submitted that the generation of VMS data was outside of the scope of instruments that would enjoy the presumption under s 146 and that there had not been sufficient evidence to establish its ability or accuracy.
In my view there has been sufficient evidence to establish that VMS data is “produced wholly or partly by a device or process”. Section 146 is not limited to “devices”, but also includes the related processes. A number of devices and processes are used. Given the evidence that the same systems are used worldwide, with an accuracy that is the same as GPS, there is no reason to doubt the general reliability of VMS data when properly used. Mr Davis has given evidence of how VMS is used internationally. Although accuracy of the data is not the defining issue with respect to the operation of the presumption, without some regard to reliability there would be no reason to rely on the device or process. There is wide acceptance of the accuracy and admissibility of GPS evidence.[7] Section 146 does not exclude complex devices or processes. Indeed, taking an approach that excluded complex devices or processes would invariably defeat the section. The question is whether it is “reasonably open” to find the requirements of the section are satisfied. Until contrary evidence was produced, in my view the threshold was met. It is clear the data annexed to Mr Ikhsan’s statutory declaration is produced wholly or partly by a device or process, although the description of how it operates is described by other evidence. The presumption in s 146 could apply, in the absence of any doubt raised in the terms of s 146(2).
As indicated, the second stage of this issue on the voir dire concerned whether there was a doubt raised that would prevent the presumption from arising. As pointed out in North Sydney Leagues’ Club Ltd vSynergy Protection,[8] s 146 does not declare the presumed fact to be the fact. Rather, the Court first needs to be satisfied that it is “reasonably open to find” that the device is of a certain kind and performs a certain function before the presumption operates. The presumption will not arise if there is evidence that raises a doubt about the presumption. Evidence that raises “a doubt” does not need to be of the same quality or of the same probative strength that is required to satisfy the civil standard.[9]
Evidence that was adduced on behalf of the accused is, on the face of it, of some probative force. Certainly the quality of the evidence is sufficient to raise a doubt about the application of the presumption. Counsel for the Crown did not disagree. The accused tendered an affidavit of Alex Johanes sworn on 23 July 2018. Mr Johanes is the Operational Manager of PT Perintis Jaya International, an Indonesian fishing company based in Bali, Indonesia. He is responsible for preparing documents for fishing and crews.
Mr Johanes retrieved VMS data from Webtrack-KKP, a website which operates by checking fishing boat positions, managed by the Marine and Fisheries Ministry for the Republic of Indonesia. In his evidence he referred to the website. He annexed a screenshot of the website he had accessed by entering a username and password. He entered the Webtrack-KKP page and chose the Perintis Jaya 19 to track from a list of other Perintis Jaya International fishing boats. He then chose the period 1 January 2018 to 17 February 2018 and downloaded the file annexed to his affidavit.
In his evidence he said the data from VMS is transmitted every hour. He downloaded the data for 47 days by 24 hours which provided an input of 1200 points. He did not know how the data he downloaded came to be on the website.
When cross-examined, Mr Johanes said he was not the owner of the company and did not have shares in the company. He sought permission from the company which was given to enable him to access the website. He agreed the company’s fishing boats were required to be registered with the Ministry of Fisheries and each boat was required to have a device communicating the VMS position. The website is used to find the location of the registered boats. He did not manipulate the data, arrange the dates or change the format. He agreed the Perintis Jaya 19 had an ID transmitter. He did not know if each of the 1069 entries in the annexure represented a GPS position. He is not trained in the interpretation of the data. He agreed he understood the points in the data represented the locations of the Perintis Jaya 19.
On the face of the material produced by Mr Johanes, the entries, in terms of the latitude and longitude that are associated with each of the date and time entries, are different from those produced by Mr Ikhsan. There was no reason to doubt Mr Johanes’ credibility. The simple point is the relevant VMS records over the same period are at variance with Mr Ikhsan’s data. There is a doubt raised as to the operation of the presumption. For those reasons the Crown cannot rely on the operation of the s 146 UEA presumption.
Counsel for the accused sought to limit the use of the voir dire evidence given by Mr Johanes. The context is that the VMS data adduced through Mr Johanes may reveal the Perintis Jaya 19 at some point being within the AFZ. Neither counsel were able to tell me whether this was so. Counsel for the Crown submitted any application to limit the use of the evidence should have been made prior to the evidence being adduced in the voir dire. While that may have been preferable, the admission of Mr Johanes’ evidence was for a particular purpose, namely to consider whether the material produced by him raised a doubt in the relevant sense. As already discussed, the probative force required need not be high.[10] In my view it would not be fair to lead the evidence as an admission against the accused who are effectively employees of the company Mr Johanes manages. Although the Crown is quite entitled in its own case to adduce the evidence from Mr Johanes in an admissible form, or indeed from any other appropriate person who has admissible evidence on the subject, in these unusual circumstances, the ruling will be the evidence of Mr Johanes, including the VMS data, cannot be led as an admission against the accused. It is appreciated this ruling is somewhat hypothetical as at this time I have not been advised whether the evidence would prove any position of the Perintis Jaya 19 was in the AFZ. Although sufficiently reliable to raise a doubt about the operation of the presumption, the circumstances are not sufficiently reliable for the evidence to be used as an admission. In any event it is not clear that material from a website tendered through the accused’s employer amounts to a statement adverse to the accused’s interests. The UEA defines an admission as a previous representation that is made by a person who is or becomes a party to a proceeding and is adverse to the person’s interests. Given the way the information was accessed by Mr Johanes, in my view it cannot safely be considered an admission by the accused. The use of Mr Johanes’ evidence will be limited in the manner described.
Admissibility of exercise books found on the Perintis Jaya 19
Two exercise books with certain entries were found on the Perintis Jay 19 (exhibits 4 and 5). The Crown relies on the contents of the books and the fact they were found on board as part of its case to prove the vessel was in the AFZ. On behalf of the accused, objection was taken to their admissibility on the grounds there was no proof of authorship and/or no proof as to who wrote the entries. Further, it was submitted there was no proof that the books and entries originated on the Perintis Jaya 19 and no proof that any entries related to the particular journey resulting in the apprehension. It was submitted David Roberts who produced the books and gave evidence on the voir dire merely assumed certain entries represented dates. It was submitted his evidence about the entries in the exercise books should not be accepted as he was not an expert in deciphering Indonesian fishermen’s records. It was suggested that all Mr Roberts had done was to make assumptions about the books and there was no link between the books and the voyage. In essence, unless the books could be linked to the accused, the evidence is not sufficient to exclude the possibility that they belonged to another journey on the boat.
In my view the exercise books are admissible. They are obviously part of the Crown's circumstantial case. Their relevance is to be determined in conjunction with other evidence. Material facts may be inferred from the exercise books, along with other evidence as to the position of the Perintis Jaya 19 and the use of fishing lines. If accepted, the books may also be relevant in conjunction with other evidence to negative a defence based on mistake of fact. The issues raised by counsel for the accused will no doubt be the subject of submissions to the jury concerning the weight of the evidence, but in my view the contents of the exercise books found on board with apparently relevant notations establish sufficient provenance to be relevant to the material facts.
Although it may be accepted for the purposes of s 79 UEA that Mr Roberts does not have formal qualifications by way of study, in my view his experience is of the kind contemplated by s 79 and he is entitled to give evidence based on his experience about what he knows from the entries in the exercise books. He clearly has significant experience with Indonesian fishers and their operation. How Indonesian fishers operate is the relevant field of knowledge for these purposes. The exercise books may be examined by the jury and considered with the other evidence from which the jury may or may not draw the ultimate inferences for which the Crown contends.
Mr Roberts is a Fisheries Officer employed by AFMA and has been in that position for 11 years. He told the Court that for seven or eight years before then, he worked as a commercial fisherman engaged in long line, drop line and charter fishing. The exercise books were found on board at the time of the apprehension and he seized them. In terms of exhibit 4, the larger of the two exercise books, he noted there were what he believed to be latitude and longitude notations of fishing lines set and retrieved. He said the books were found in the wheelhouse or the bridge of the vessel and he formed the view they related to fishing lines being set and retrieved, as latitude and longitude were documented followed by a symbol of a flag and two numbers after the flag, which he believed to represent the position where fishing lines were retrieved.
Mr Roberts said he based this view on his experience as a Fisheries Officer. He said historically physical flags would be used to identify the start and end of fishing lines and he thought the flag symbol drawn in columns in exhibit 4 illustrated this. He had never seen another symbol, other than a flag representing a line. As to the set of numbers to the right-hand side of the flag icons noted in Exhibit 4, he said he believed that was where the lines were retrieved, although he acknowledged degrees are not noted. He said he believed the degrees were missing because the line was retrieved and the degree would not change because a change in the degree would represent a significant movement of the line. He said that minutes and seconds would change as they would move with the tide and wind. He came to the conclusion that the notation 16/2018 was a date and was in fact the date of the apprehension. He noted that at 17°00, 497 South and 115°30, 444 East that he observed an electronic beacon which was attached to a long line that was being recovered with the number of branch lines. He said he retrieved an electronic beacon very close to the number in the log book, within 100 or 50 metres.
Asked whether he had done any specific training or studies in the way Indonesian fishermen operate, he said he had not done any formal studies but having worked with AFMA for 11 years, apprehending vessels and interacting with Indonesian fishermen, he believed he had a good understanding of them. He agreed he did not know what KI stood for. He did not know what X59X stood for. Asked about the numbers one, two, three, four, five and six that appear on the left side of the exercise book, he said he believed at the time there were six long lines in the water. He said he did not see six long lines in the water but the vessel had racks at the side where electronic beacons were placed. At that time there were six empty racks. He agreed he had made an assumption that those numbers meant devices were to be placed on the empty racks. He said he believed it was beacon number six that he retrieved that pertained to the latitude and longitude he had given evidence about. He agreed that only one beacon was found and retrieved. He said not all of the lines were retrieved. He believed there were more lines but there was a problem with the weather and he deemed it to be safer to return to Darwin rather than retrieve the lines. He said there was the potential for a cyclone which had formed off of the Western Australian coast and it was in their location.
As indicated, in my view Roberts’ experience permitted him to give the evidence about what he thought various entries in the exercise books referred to. Although he agreed he had made certain assumptions, when his evidence is properly contextualised, it is clear he is referring to his belief or knowledge on the basis of past experience. The matters raised on behalf of the accused are more appropriately dealt with as questions of weight when viewed with the totality of the evidence.
The exercise books (exhibits 4 and 5) will be admitted.
Admissibility of the s 166(2) Fisheries Management Act Certificates
John Davis, as a delegate of AFMA, completed a Certificate made pursuant to s 166(2) of the Fisheries Management Act on 20 July 2018 certifying inter alia an area of the AFZ. The Court was told the Certificate replaced an earlier Certificate that had wrongly purported to certify the position of the Perintis Jaya 19. The current Certificate does not suffer from that defect. The effect of ss 166(1) and (7) is that the Crown is entitled to rely on a Certificate issued under s 166(2) as prima facie evidence of the matters certified without the need to prove the underlying facts.[11]
Further, s 166(8) of the Fisheries Management Act provides:
A document purporting to have been signed, issued or given under this Act is, on mere production, admissible in any proceedings as prima facie evidence of the fact that it was duly signed, issued and given.
The basis of the objection to the Certificate is not entirely clear. It appears to revolve around authorisation to make the Certificate.
An objection taken by the Crown was upheld when Mr Thomas, on behalf of the accused, cross-examined Mr Davis by asking him to “elaborate” on exactly how his delegation came into existence. The Court was told no evidence would be adduced to the contrary concerning the delegation, however counsel sought to explore how the authorisation came into existence. I did not understand the relevance of the questions. It did not appear it was being suggested in any real sense that Mr Davis was not properly authorised, or that he did not have the appropriate delegation. The Certificate states Mr Davis is a delegate of AFMA. In those circumstances, s 166(8) governs the admissibility. Counsel for the Crown confirmed the position that the prosecution would advise counsel for the accused, in accordance with the duties of a prosecutor, if there was any want of authority to issue an evidentiary certificate.
The s 166(2) certificate is admissible.
The matter is listed for case management inquiry on 30 August 2018 at 9:00am in order to deal with any outstanding issues. By arrangement with counsel, these reasons will be forwarded by email.
[1] North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd [2012] NSWCA 168; 83 NSWLR 710 at [63] per Bedeley JA.
[2] Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; 1998 NZDCR LEXIS 57.
[3] Ministry of Agriculture and Fisheries v Thomas [1994] DCR 486.
[4] Zappia v Web [1974] WAR 15 at 17.
[5] Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; [1998] NZ DCR LEXIS 57 at 8.
[6] Norvill v Stokes [2006] NSWLEC 622 at [72], per Jagot J.
[7] Ministry of Agriculture and Fisheries v Wallace [1998] DCR 837; Wilgosh v Good Spirit Acres Ltd [2007] SKCA 43; United States of America v Brooks, 715F 3d 1069 (8th Circ, 2013); Penrose v Nominal Defendant & Anor [2009] NSWSC 1187; Aregar v Cox [2018] NTCA 3.
[8] North Sydney Leagues’ Club Ltd v Synergy Protection (2012) 83 NSWLR 710 at [60] per Beazley JA.
[9] North Sydney Leagues’ Club Ltd v Synergy Protection (2012) 83 NSWLR 710 at [60] per Beazley JA.
[10] North Sydney Leagues’ Club v Synergy Protection (2012) 83 NSWLR 71 at [60] per Beazley JA.
[11] Aregar v Cox [2018] NTCA 3 at [127] per Kelly J.
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